The South African ID book. Independent Media
The South African ID book. Independent Media

ConCourt rules kids born abroad have right to SA citizenship

By Bongani Nkosi Time of article published Jul 23, 2020

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A landmark court ruling has declared that children of South Africans born out of the country are entitled to get their citizenship.

The Constitutional Court has ordered Home Affairs to grant the rightfully-deserved citizenship to four adults born outside the country to South African parents.

Vusi Chisuse, born in Malawi, Emma Dullart, born in Ghana, and Zimbabwe-born Amanda Tilma and Martin Hoffman first dragged Home Affairs to court in 2016, represented by Lawyers for Human Rights, for refusing to process their applications.

Their fight to attain citizenship on grounds of descent finally bore fruit yesterday as the Constitutional Court confirmed a North Gauteng High Court ruling that went in their favour.

Home Affairs lost in absentia at the high court, after it failed over two years to file opposing papers.

The high court satisfied itself that the four were children of South Africans born outside the country. It found against one applicant, Mafusi Nthunya, who was born in Lesotho.

Justice Sisi Khampepe, in the apex court’s unanimous ruling delivered yesterday, did not confirm the high court’s accompanying order that declared the amended Citizenship Act unconstitutional and invalid.

Lawyers for the citizenship applicants had blamed the amendments as the root of their clients’ troubles.

The lawyers argued that the Citizenship Act amounted to a wholesale deprivation of citizenship rights overnight following the 2010 amendments.

They told the courts that the amended act did not allow for persons born before January 1, 2013, to retain or obtain citizenship.

At issue was the phrasing of a section in the act. The lawyers argued the wording of the section was not retrospective and therefore did not cover people born before 2013.

Justice Khampepe ruled that the wording of the act should not be interpreted narrowly. The phrasing can be interpreted to cover people born to South Africans outside the country before and after 2013, she said.

“Section 2 of the 2010 amendment may thus be read in a manner that does not fall into any of the unconstitutional dangers advanced by the applicants.

“As a result, the confirmation of the orders of invalidity by the high court must be declined,” Justice Khampepe said.

She also found fault with the high court judge’s apparent failure to offer reasons in her judgment for the invalidity finding.

“Without the benefit of a reasoned judgment from the high court, this court is placed in an invidious position.

“This is unfortunate, and we must hope that failure to provide reasons when legislation is declared invalid does not become a regular practice by lower courts,” Justice Khampepe said.

But the judge could never be faulted on the finding that the four proved that they qualified for South African citizenship, said Justice Khampepe.

“It is clear that the judge applied her mind to the factual evidence before the high court and reached the conclusion that four of the five applicants in the high court had proven their claims.”

Home Affairs should issue the necessary documents recognising citizenship of the four “as soon as possible”.

“The applicants have already suffered greatly by the dilatory conduct of the respondents and there is no reason why they should continue to be at their mercy,” she added.

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